Attorney: Court Striking Down Smoking Ban is a 'Victory for the Little Guy'

Published 02/11 2014 06:24PM

Updated 02/11 2014 06:30PM

The judges were split but the Indiana Supreme Court strikes down Evansville's smoking ordinance by a vote of 3 to 2. The decision opens the doors for bar and tavern owners who want to allow patrons to smoke.

The decision handed down Tuesday morning by the Indiana Supreme Court capped off an ongoing legal battle since the city's smoking ban was expanded. The amendment, passed by the City Council in a 7-2 vote, prohibited smoking in bars, restaurants, taverns and private clubs. However, Tropicana Evansville, formerly known as Casino Aztar, was exempt from the smoking ban.

A group of local business owners challenged the ordinance which is how it landed on the desk of the Indiana Supreme Court. The ordinance's exemption of Tropicana Evansville ultimately proved to be the determining factor in why the ordinance was struck down, according to court documents.

Chief Justice Brent Dickson quoted the 'equal privileges and immunities clause' in the state constitution which prohibits granting privileges to a select group of citizens but not all.

"Today we hold that this clause invalidates an Evansville ordinance expanding the city's smoking ban to bars and restaurants but exempting its only riverboat casino," Justice Dickson said in his ruling.

However, the ruling doesn't necessarily mean that people can begin smoking at bars right away.

For private clubs like the VFW, a vote must be taken to allow smoking inside the facility. Indiana State Excise Police said bar owners must still apply for a waiver from the state. Officials said they are trying to expedite the process of doing so.

The Supreme Court's decision proved to be a topic of conversation among many city officials

"I was very shocked but I was very happy because I thought, finally, the little guy has won," said City Councilwoman Missy Mosby (D-2nd Ward). "I had small business and tavern owners start calling me saying 'have you heard this?' It's a great thing for the small, local business owners. They won on this one."

"I was puzzled by the decision," said City Council President John Friend (D-5th Ward). "When you feel there is one element of society that is being negatively affected, they are not going to like it. I don't blame them. You are going to have these challenges. That's always in the back of your mind."

Charlie Berger, the attorney who represented the group of tavern and bar owners who filed a lawsuit against the city, said the issue wasn't about public health or money. Berger said the smoking ban was a constitutional issue. Berger said a federal lawsuit has been filed in U.S. District Court that seeks punitive damages because of the smoking ban. That lawsuit is still being adjudicated.

Berger isn't known for calling press conferences but felt compelled to on Tuesday afternoon after the decision was handed down.

"The little guy, the little woman, their voices were heard," Berger said. "It wasn't the big money that controlled how the government should operate. That's the message in all this. Millions of dollars came to the city from the casino and only thousands of dollars came to the city from my clients. That's not what I believe the United States is all about."

Berger said it's very rare to have the state Supreme Court hand down this kind of ruling on a constitutional issue. Furthermore, Berger said, it's even more rare to have it handed down in a 3-2 vote.

"When you've practiced law as long as I have and you have had the privilege of going before the Supreme Court as many times as I have, you don't often have this result,” Berger said. He added that this decision will likely rank among the highlights of his career.

Bar owners now face the decision of whether to allow smoking or to adopt their own personal smoking ban. It also leaves Evansville City Council members to decide whether they are comfortable with fighting this smoking ban battle again.

"I, as Council President, will weigh in on it and query all of the other council members to see what the options are and go from there," Councilman Friend said. "In other words, this is kind of like a developing story."

Evansville Mayor Lloyd Winnecke said in a statement that he was disappointed by the ruling. He asked businesses to continue to enforce a 'no smoking policy' while the city continues to evaluate the legal implications of the decision, according to a statement.

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